Lawsuit Could Delay Express Scripts-Medco Merger

Daniel Weiss, Senior Editor

Published Online: Thursday, March 22, 2012

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Even if the FTC approves Express Scripts’ bid to buy Medco, several states are considering a lawsuit that could delay the deal from being finalized.
Attorneys general from 5 states are reportedly considering a lawsuit that could delay Express Scripts Inc’s plan to purchase Medco Health Solutions Inc, which would result in the country’s largest pharmacy benefits manager. According to a Bloomberg report, New York, Pennsylvania, Ohio, Texas, and California plan to file the suit if the Federal Trade Commission (FTC) approves the deal without adequate protection against increased prescription prices and reduced options for consumers.

Combined, Express Scripts and Medco would oversee 34% of US prescriptions this year, although this would drop to 29% next year due to UnitedHealth Group’s decision to switch from Medco to an in-house pharmacy benefits manager. A total of 25 states, including the 5 listed above, are scrutinizing the proposed merger for potential antitrust violations.

When the merger was first proposed in July 2011, many anticipated that it would face significant opposition from the FTC, but in recent weeks the agency has appeared close to granting approval. Earlier this month, the National Association of Chain Drug Stores and the National Community Pharmacists Association, both adamantly opposed the merger, told the Wall Street Journal that they had responded to the FTC’s request for input regarding conditions that could be attached to the merger to ensure that it would not stamp out competition.

A decision from the FTC on the merger had been due by the end of the month, although this deadline could be extended if necessary. Representatives of Express Scripts and Medco have said they expect the deal to be completed within the first half of this year.

In his keynote address at the American Pharmacists Association’s general session, Daniel Kraft, MD, chairman of the medicine and neuroscience tracks for Singularity University, posited that it is time to think outside the box and reimagine health and pharmacy.